Sunday, 19th October 2014
The fact that the General Court of the European Court of Justice has rendered invalid the listing of the LTTE as a terrorist organization in the EU has caused much consternation in Sri Lanka. It has to be noted that bodies like the European Court of Justice (ECJ) and the European Court of Human Rights often deliver judgments that cause much distress in member states of the EU itself so it’s hardly surprising that we would find one of their rulings disconcerting. The decisions of these courts is one of the main reasons why the Conservative government in Britain is promising to have a referendum before the end of 2017 to decide whether Britain is going to remain a member of the EU or not. Reading the judgment of the ECJ, it appears on the face of it that the EU Council did put up a fight to keep the LTTE on the list of terrorist organizations and subject to financial sanctions and asset freezes. But certain circumstances makes one wonder whether there was some unholy collusion within the EU structure to have the ban on the LTTE lifted.
Back in 2006 when the EU finally made the decision to include the LTTE in its list of terrorist organizations it was amidst great reluctance on the part of some EU states. Mangala Samaraweera was then the foreign minister of the UPFA government and it was he who was involved in the negotiations with the EU states to have the LTTE declared a terrorist organization. It had been an uphill struggle all the way and the LTTE would never have been declared a terrorist organization in the EU if not for the unstinting support of the last Republican government in the USA. It was actually the Americans who managed to persuade the recalcitrant EU nations to place the LTTE on the terrorist list. The significant thing was that this reluctance was despite all the outrages committed by the LTTE up to that time. In fact when the EU finally (and very reluctantly) decided to declare the LTTE to be a terrorist organization, the FBI was only 18 months away from declaring the LTTE to be the world’s deadliest terrorist organization outranking even Al Qaeda!
It is in this backdrop that we have to examine this latest decision of the European Court of Justice. We all know that when it is inconvenient to do something politically, administratively or legislatively, recourse can always be had to the judiciary to make the necessary changes. We see that happening in Sri Lanka all the time. When somebody is trying to hold a demonstration that would have the potential to disturb the peace, the police don’t simply tell the demonstrators "We’ll break your legs if you come out on to the streets!" What they do instead is to go before a magistrate and obtain a restraining order on the organizers of the demonstration. The more straightforward method would raise howls of protest about the suppression of democratic rights whereas the involvement of the judiciary precludes all that. Another thing to note is that the judiciary is like an ice cream machine – what comes out depends on what went in. You can always obtain the result you want by changing what goes in.
The European Union is made up of several bodies that like a state exercises executive, legislative and judicial functions. The European Council is the executive arm of the EU comprising of the President of the European Council and the heads of state and heads of government of all the member states. The European Commission is the administrative arm and responsible for the day to day running of the EU. (The European Commission was always opposed to placing the LTTE on the terrorist list.) The EU has a bicameral legislature. There is the European parliament which is directly elected by the people of Europe and the second chamber of the EU legislature which is made up of the Council of the European Union which is made up of one minister from each member state. The Judiciary of the EU is made up of the European Court of Justice which in turn comprises of three bodies - the Court of Justice, the General Court and the European Union Civil Service Tribunal.
The judgment in favour of the LTTE has been given by the General Court which is a court of first instance. If we examine the judgment of Liberation Tigers of Tamil Eelam vs Council of the European Union, we see that the LTTE ban was removed due to a technicality where there was a mismatch between a list of acts committed by the LTTE which was submitted as reasons for continuing to have them on the terrorist list and some decisions made in various countries about the LTTE which was presented as corroboration for the former. The list of about two dozen specific terrorist acts of the LTTE included only incidents between 2005 and 2009 whereas the UK and Indian decisions on the LTTE which had been presented as corroboration all pertained to the period before 2005. That is the kind of mistake that you deliberately make when you want to lose a case and get the judiciary to do what is inconvenient to do administratively.
When the time mismatch between the corroborative documents and the acts of terrorism were pointed out, the EU Council had presented more recent decisions on the LTTE arrived at in the UK, India and France, but none of these corroborative documents made any mention of the two dozen or so specific terrorist acts committed between 2005-2009 that the EU had used to justify keeping the LTTE on the list of proscribed organizations. That was the kind of technicality on which the LTTE has now been taken off the terrorist list. Now the question that arises is how can anybody who has experience in preparing documentation for legal matters make such mistakes unless they were made deliberately? Every court expects a match between the specific allegations being made and the evidence or corroborative documents that are bring presented to prove or justify those specific allegations. Yet this was exactly what was missing in the way the EU Council presented its case.
When we examine this inexplicable bungling in the light of the reluctance of certain EU nations to list the LTTE as a terrorist organization in the first place and the European Commission’s bitter opposition to it, we are led to the inexorable conclusion that this bungling was deliberate and a way of getting done through the judiciary something that was inconvenient to do administratively or politically.
When a decision is made placing a group on the list relating to frozen funds, the EU Council must verify at least once every six months, that there are grounds for continuing to keep that party in the list. The decision of a national authority is an essential precondition for the adoption by the Council of an initial decision to freeze funds because the European Union does not have the means to carry out its own investigations regarding the involvement of a person in terrorist acts. In adopting a decision to freeze funds the Council is required to state the matters of fact and law that constitute the legal basis of its decision. As regards the factual or legal grounds of a fund-freezing decision concerning terrorism, the list relating to frozen funds is to be drawn up on the basis of precise information on a sufficiently solid factual basis, requiring a decision taken by a national authority.
Appearing before the General Court, The EU Council had described the LTTE as a ‘terrorist group’ formed in 1976 which fights for a separate Tamil State in the north and east of Sri-Lanka, and stated that the LTTE has carried out ‘a number of terrorist acts including repeated attacks on and intimidation of civilians, frequent attacks against government targets, disruption of political processes and kidnappings and political assassinations and submitted that ‘while the recent military defeat of the LTTE has significantly weakened its structure, the likely intention of the organization is to continue terrorist attacks in Sri-Lanka. Then the Council draws up a list of the ‘terrorist attacks’ which it claims that the LTTE carried out from August 2005 until April 2009. To corroborate this, The EU Council refers to decisions that the UK and Indian authorities adopted in 1992, 2001 and 2004 against the LTTE.
Even though the list of acts drawn up by the Council plays a decisive role in the assessment of the appropriateness of continuing the freezing of the LTTE’s funds, none of those acts were examined in the national decisions invoked. All those acts are subsequent to the national decisions relied on. The General Court ruled that the factual basis of a decision of the European Union to freeze funds concerning terrorism should be based not on information that the Council derived from the press or the internet, but on information which has been specifically examined and upheld in decisions of competent national authorities!
Be that as it may, we see a difference in the degree of precision that the various bodies of the EU require with regard to allegations made against the LTTE on the one hand and allegations made against Sri Lanka. In August and October 2009, the European Commission put out two reports on Sri Lanka which alleged human rights violations during the war and these were used to deprive SL of the GSP+ trade concession. In August 2009, when the European Commission put out their interim report on Sri Lanka, they said that they had no idea as to how many civilians would have died in the last stages of the conflict because no information was available. But three months later when their final report came out, they had a figure of 20,000 derived from a single newspaper report in the London Times which quoted unnamed UN sources. It was largely on the basis of this figure of 20,000 deaths that SL lost the GSP+ trade concession.
That fact sits oddly beside this requirement that before restrictions or penalties are imposed, the allegations made have to be grounded on solid fact and not ‘newspaper reports or the internet’! It is interesting to note that even though the London Times report that the European Commission based their conclusion on mentioned unnamed ‘UN sources’ for this figure of 20,000 when the UN Secretary general himself put out a report on Sri Lanka in April 2011, there was no mention of any UN sources giving a figure of 20,000. While the UN report itself has come out with an estimate of 40,000, that was not derived from UN sources but from outsiders who gave those estimates to Ban Ki-moon’s Panel of Experts. So there never were any internal UN estimates giving a figure of 20,000 at the time the London Times report was written. Thus the European Commission based their conclusions of unverified newspaper reports that were obviously fabrications.
It is of course true that the European Commission is not a court requiring a legalistic degree of precision. But before decisions are made even administratively, there is a basic level of precision that is required in the facts being used to make decisions. But we see that the European Commission has not kept even to these minimum standards when accusing Sri Lanka of human rights violations and depriving us of GSP+ whereas the European Court of Justice insists on absolute precision with regard to the allegations against the LTTE.
